Charles v. Prentice , 88 Okla. 246 ( 1923 )

I am so thoroughly convinced that the action of the majority of the court deprives the plaintiffs in error in this very important case of their right to have the errors complained of reviewed on their merits, by a very technical ruling on a question of practice, that I deem it advisable to present my view of the law in a short dissenting opinion.

It is true as stated in the majority opinion: "The petitions in error of the plaintiffs do not assign as error the overruling of the trial court of the plaintiff's motions for a new trial." But this as I see it is not the only way errors occurring at the trial may be presented for review. First, let us see what the governing statute requires the complaining party to do, then what they did in this case and then whether this was a sufficient compliance with the statute.

The statute, section 523, Rev. Laws 1910, provides in substance that the proceeding for the reversal of any action of the trial court shall be by petition in error filed in the Supreme Court setting forth the errors complained of.

Now it is conceded that the aggrieved parties filed in the trial court a proper motion for a new trial separately setting forth each and every statutory ground upon which a re-examination of errors occurring at the trial may be had and that upon their motion for a new trial being overruled, they filed in this court a petition in error separately setting forth each and every error occurring during the trial of which they complained in their motion for a new trial.

Now why in reason is this not tantamount to saying that the trial court erred in overruling their motion for a new trial? I think it is. Indeed I think it more strictly complies with the letter and the spirit of the statute hereinbefore set out and the rules of this court than the cut and dry formula insisted on by the majority of the court. The statute as we have seen requires no particular form of expression, it simply provides that the plaintiff in error shall set out in his petition in error the errors complained of; and the rule of court provides that the brief of plaintiff in error shall contain the specifications of error complained of separately set forth and numbered. This it appears to me is precisely what the plaintiffs in error did.

And this is entirely consonant with good practice.

The object of the assignment being to point out specifically what is relied on as error, a general assignment without specifications of the particular point relied on gives no information to the appellate court or to the adverse party and will not as a general rule be considered. 2 R. C. L. 135.

I have not made an extensive search for authorities in point but I am fairly familiar with those of this jurisdiction and venture to say from memory that there are no cases which specifically disapprove the practice followed by counsel for appellant in this case or approve, in similar circumstances, the narrow rule laid by the court.

In my opinion the true rule is that it is not necessary that the assignment of error should be couched in exactly the same language as the ground alleged for a new trial, since if the ruling is identified and plainly defined it is sufficient. 2 R. C. L. 135; Waxham v. Fink, 86 Neb. 180, 125 N.W. 145, 21 Ann. cases 301, 28 L. R. A. (N. S.) 267.